Immigration and Customs Enforcement (ICE) has reportedly begun conducting on-site company inspections for STEM Optional Practical Training (OPT) employees. Companies that employ F-1 students should review their STEM OPT training programs to ensure compliance with the law and prepare for an inspection.
While OPT employment authorization is typically granted for up to 12 months after graduation, individuals who graduate with a qualifying STEM (science, technology, engineering and/or mathematics) degree, and meet other requirements, may apply for an additional 24 months of OPT work authorization for training directly related to their degree program. To qualify, the employee must work with their employer to complete a structured training plan to show how their education will be furthered by their continued employment in the United States.
ICE will conduct the site visits randomly or when the government determines that a site visit is needed, such as if a complaint is received. If the site visit is random, ICE will give two days’ notice by e-mailing the STEM OPT worker’s manager. The notice will request a copy of each STEM OPT employee’s training plan.
On these site visits, the officer will likely be confirming the employer is complying with their obligations and that they have the resources to provide the structured learning experience detailed in the training plan. For example, the new STEM OPT rules make it difficult for employees to work from home or at a client site where they could not receive guidance and support from a company manager. The site visits also ensure the requisite employer/employee relationship exists. ICE officers typically want to tour the facility and may want to view the employee’s workspace. They may ask to meet with the STEM student, but even if they do not, the employee may be present during the inspection if they and the company so choose. The officers may also examine documentation to make sure STEM OPT students work the same hours and are paid the same as similarly situated U.S. workers.
Companies that have STEM OPT employees should have a policy in place for these site visits and take steps to ensure compliance with STEM OPT requirements:
- Prepare student training plans carefully and make sure they accurately reflect the work the employee will be performing.
- Notify the employee’s Designated School Official (DSO) of any material changes to the training program, including termination.
- Regularly update the training plan with the student’s progress in the program.
- Designate a company representative to respond to these site visits and provide the representative with training on what to do/how to respond.
- Develop company policies regarding communication with other government visitors.
- Train your front-line employees, such as receptionists or security officers, on what to do if visited by a government official.
In many situations, ICE has allowed attorneys to appear at site visits, either in person or by phone. If you receive a notice of a STEM OPT inspection, contact counsel before providing documents to ICE for case-specific advice.